Sunday, March 28, 2004

There are many fascinating aspects to the opinion but one of the more interesting ones is how Google.com seems to have lowered the bar for undue burden in discovery issues relating to the privacy concerns of plaintiffs and other individuals involved in lawsuits.

Judge Posner states:

"Some of these women will be afraid that when their redacted
records are made a part of the trial record in New York,
persons of their acquaintance, or skillful “Googlers,” sifting the
information contained in the medical records concerning each
patient’s medical and sex history,will put two and two together,
“out” the 45 women, and thereby expose them to
threats, humiliation, and obloquy."

Is this the first time that Google itself has been singled out as a otuside force on the law that changes the math when comparing the burden on an individual's privacy interest? Has technology changed the way these evidentiary issues should be weighed by
Judges and if so, should the Rules Committee look into it?
Should the "skillfull googlers" standard be the standard that Federal Judges apply when bancing privacy concerns?

I don't know right now, but in this dwning information age, I cannot imagine that any possible information releasedmight fall into this category. the "skillfull googlers" level is really quite high a level. Believe me. And as more and more organizations create extra/intranets to handle all of their data the level and type of information available could expand exponentially. (On the other hand, I still can't find out who atrios is despite heavy Googling. then again male substitute gym teachers are not a heavy web presence...) I think Judge Posner erred in this case based on the other safegaurds in place in terms of the handling of the material, which is detailed in the case.

By the way, this is not the first time that evolving technology has change aspects of the law, even as it applies to the dissenting judge, Daniel Manion, in this case. "In the Washington Post, July 30 1986, pg A-23, columnist James J.
Kilpatrick: discussed the nomination and confirmation of Daniel Manion as appellate judge. Manion had been taken to task by some in the Senate as not qualified to be an appellate Judge due to several errors that had been found in briefs that he had filed in court as a private practitioner. Kilpatrick stated:
"In sum, I fear not for the republic, or for the 7th Circuit, when
Manion joins the club. Give him an intelligent clerk and a good word processor, and the gentleman may look forward to many happy years on the bench."